Rice v. Bauer et al

Filing 76

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/7/2017 GRANTING defendants' 75 request for an extension of time and their reply to plaintiff's opposition is due on or before 8/23/2017. Plaintiff's 74 motion for appointment of counsel is DENIED. (Yin, K)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KORDY RICE, 11 No. 2:15-cv-0236-JAM-EFB P Plaintiff, 12 v. 13 D. BAUER, et al., 14 ORDER Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. Defendants have filed a motion for summary judgment (ECF No. 68) and plaintiff 18 has filed a response thereto (ECF No. 73). Defendants have filed a request for extension of time 19 and seek to extend the deadline for filing their reply to plaintiff’s opposition. ECF No. 75. 20 Additionally, plaintiff has filed a motion seeking appointment of counsel. ECF No. 74. 21 Defendants’ request for extension of time will be granted and plaintiff’s motion for appointment 22 of counsel will be denied. 23 I. Request for Extension of Time 24 Defendants request an extension of time to file their reply because their counsel –Deputy 25 Attorney General Martha P. Ehlenbach – has been out of the office and will not return until 26 August 14, 2017. ECF No. 75 at 2. This is defendants’ first request for extension of time on this 27 issue and there is no indication that plaintiff will be prejudiced by this extension. Accordingly, 28 defendants’ request will be granted. 1 1 II. 2 Plaintiff asks the court to appoint counsel to represent him. ECF No. 74. He states that Motion to Appoint Counsel 3 this case is factually complex and his ability to investigate those facts is limited. Id. at 5. 4 Plaintiff also states that this case is legally complex insofar as it involves four separate defendants 5 and, if it proceeds to trial, will be heard by a jury. Id. at 6. The court concludes that appointment 6 of counsel is not warranted at this time. 7 District courts lack authority to require counsel to represent indigent prisoners in section 8 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional 9 circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 10 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. 11 Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether “exceptional 12 circumstances” exist, the court must consider the likelihood of success on the merits as well as the 13 ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 14 involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, 15 the court finds there are no exceptional circumstances in this case. Despite plaintiff’s claim to the 16 contrary, the court finds that this case is not legally complex. And while plaintiff would 17 undoubtedly benefit from the greater investigative resources available to appointed counsel, the 18 same could be said of any prisoner litigant. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 19 1997) (finding no abuse of discretion under 28 U.S.C. § 1915(e) where pro se prisoner was denied 20 counsel despite the fact that he “may well have fared better-particularly in the realms of discovery 21 and the securing of expert testimony.”). Thus far, plaintiff has demonstrated an ability to 22 adequately represent his interests in this litigation. 23 III. 24 Accordingly, it is hereby ORDERED that: 25 1. Conclusion Defendants’ request for extension of time (ECF No. 75) is GRANTED and their 26 reply to plaintiff’s opposition (ECF No. 73) is due on or before August 23, 2017; and 27 ///// 28 ///// 2 1 2 2. Plaintiff’s motion for appointment of counsel (ECF No. 74) is DENIED. DATED: August 7, 2017. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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